IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANDREW W. KATZENMOYER,

Plaintiff,

vs. Civil Action 2:12-cv-660

Judge Watson

Magistrate Judge King

TR’BL MARKETING, LTD, et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff’s Motion to Remand

(“Motion to Remand”), Doc. No. 9. For the reasons that follow, it is

RECOMMENDED that the Motion to Remand be DENIED.

I. BACKGROUND

Plaintiff Andrew Katzenmoyer brings this action to compel

defendants to submit a disputed disability insurance claim to binding

arbitration. Complaint for Specific Performance (“Complaint”), Doc.

No. 3, ¶¶ 9, 11, 14-15, 26. Plaintiff’s Complaint asserts state law

claims for specific performance, breach of contract, anticipatory

breach of contract and insurance bad faith. Complaint, ¶¶ 7-26. 

The Complaint, Doc. No. 3, names as defendants TR’BL Marketing,

LTD (hereinafter “TR’BL”), Petersen International Underwriters

(hereinafter “Petersen International”) and Certain Interested

1

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 1 of 12 PAGEID #: <pageID>
Underwriters at Lloyd’s of London (hereinafter “Underwriters”).1

Plaintiff alleges that he purchased a disability insurance policy (the

“Agreement”) from defendants while he was a member of the New England

Patriots professional football team. Id. at ¶ 8. He presented a

claim for disability on July 1, 2002, seeking the policy limits of

$1,000,000 in connection with a permanent and career ending injury

that he sustained on July 16, 2001, but defendants allegedly denied

his claim without complying with the Agreement’s mandatary arbitration

provision. Id. at ¶¶ 13, 17-19. 

This action was originally filed in the Court of Common Pleas for

Franklin County, Ohio, and was removed to this Court on July 20, 2012 

on the basis of federal question jurisdiction. Notice of Removal,

Doc. No. 1, ¶¶ 1, 7-8, 10. Defendants Underwriters and Petersen

International joined in the Notice of Removal. The Notice of Removal

also indicates that TR’BL consented to the removal although its agent

did not sign the Notice of Removal. Plaintiff filed the Motion to

Remand on July 31, 2012. TR’BL filed its written Consent to Removal,

Doc. No. 13, on August 9, 2012, and defendants Underwriters and

Petersen International thereafter filed their response to the Motion

to Remand. Memorandum of Defendants Underwriters and Petersen in

Opposition to Plaintiff’s Motion to Remand, Doc. No. 14. Plaintiff

has not filed a reply. 

Plaintiff is a citizen of the United States; defendant Petersen

International is a business based in California and defendant TR’BL is

1

This defendant asserts that it is properly identified as Certain

Interested Underwriters at Lloyd’s, London Subscribing to Certificate No.

003835/Policy No. 0998/00. Notice of Removal, ¶ 3.

2

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 2 of 12 PAGEID #: <pageID>
an Ohio limited liability corporation with its principal place of

business in Franklin County, Ohio. Plaintiff’s Motion, p.7;

Complaint, ¶¶ 2-3. Defendant Underwriters is an unincorporated

insurance services company organized under the laws of the United

Kingdom and having a principal place of business in London, England. 

Notice of Removal, ¶ 3; Complaint, ¶ 4. 

II. DISCUSSION

Under 28 U.S.C. § 1441(a), “[a]ny civil action brought in a State

court of which the district courts of the United States have original

jurisdiction, may be removed by the . . . defendants to the district

court of the United States for the district and division embracing the

place where such action is pending.” To remove a civil action from

state court to federal court, a defendant or defendants desiring

removal must file “a notice of removal signed pursuant to Rule 11 of

the Federal Rules of Civil Procedure and containing a short and plain

statement of the grounds for removal, together with a copy of all

process, pleadings, and order served upon such defendant or defendants

in such action.” 28 U.S.C. § 1446(a). The removing party bears the

burden of demonstrating federal jurisdiction and all doubts should be

resolved in favor of remand. Eastman v. Marine Mech. Corp., 438 F.3d

544, 549–50 (6th Cir. 2006) (citations omitted). 

Plaintiff asserts that the action must be remanded because this

Court lacks subject matter jurisdiction and because removal was not

timely consented to by all defendants as required by 28 U.S.C. § 1446. 

Motion to Remand, p.1. 

A. Jurisdiction

3

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 3 of 12 PAGEID #: <pageID>
The Complaint alleges state law claims of specific performance,

breach of contract, anticipatory breach of contract and insurance bad

faith. Complaint, ¶¶ 7-26. The Notice of Removal invokes federal

question jurisdiction under the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (the “Convention”), 9 U.S.C. §

201 et seq., and the Federal Arbitration Act, 9 U.S.C. § 1 et seq. 

Notice of Removal, ¶¶ 8-11. Generally, a plaintiff is the master of

his complaint, and he can choose to avoid federal jurisdiction by

asserting only state law claims. Medlen v. Estate of Meyers, 273 F.

App’x 464, 466 (6th Cir. 2008) (citing Caterpillar, Inc. v. Williams,

482 U.S. 386, 398-99 (1987)). However, where the subject matter of an

action pending in state court relates to an arbitration agreement

falling under the Convention, the grounds for removal “need not appear

on the face of the complaint but may be shown in the petition for

removal.” 9 U.S.C. § 205.2 Thus, notwithstanding the fact that

plaintiff has alleged only state law claims, the Court has federal

question jurisdiction if the grounds for removal stated in the Notice

of Removal fall under the Convention. See id. at § 203 (“An action or

proceeding falling under the Convention shall be deemed to arise under

the laws and treaties of the United States.”)

 The Convention applies to written arbitration agreements arising

2

Section 205 provides in relevant part: “Where the subject matter of an

action or proceeding pending in a State court relates to an arbitration

agreement or award falling under the Convention, the defendant or the

defendants may, at any time before the trial thereof, remove such action or

proceeding to the district court of the United States for the district and

division embracing the place where the action or proceeding is pending. The

procedure for removal of causes otherwise provided by law shall apply, except

that the ground for removal provided in this section need not appear on the

face of the complaint but may be shown in the petition for removal.” 

4

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 4 of 12 PAGEID #: <pageID>
out of a “legal relationship . . . which is considered as commercial,”

and either at least one party to the contract must not be a United

States citizen or the commercial relationship must have a “reasonable

relation with one or more foreign states.” Id. at § 202; Answers in

Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459,

468 (6th Cir. 2009). In the case presently before the Court, the

Agreement is in writing, it concerns a commercial topic, and it

contains an arbitration provision.3 See Exhibit 1, attached to Motion

to Remand, p. 2.

This action relates to the arbitration provision because

plaintiff is seeking to enforce that provision and to compel

defendants to submit a disputed disability insurance claim to binding

arbitration. Complaint, ¶¶ 9, 11, 14-15, 26. It is also undisputed

that plaintiff is a United States citizen and that Underwriters is not

a United States citizen. Nevertheless, plaintiff argues, the

Convention does not apply because the insurance agreement at issue in

this case is between two United States citizens. Motion to Remand,

pp. 6-7. Plaintiff specifically asserts that Underwriters is not a

party to the Agreement, and that Petersen International is, because

3

“BINDING ARBITRATION: Not withstanding any other item setforth [sic]

herein, the parties hereby agree that any dispute which arises shall be

settled in Binding Arbitration. By agreeing to Binding Arbitration, all

parties acknowledge and agree that they waive their right to a trial by a

jury. Binding Arbitration will be held before a neutral arbitrator who will

be agreed to by all parties. If the parties cannot agree as to the

arbitrator, or believe that a single arbitrator cannot adequately settle the

dispute, then an arbitration panel made up of three arbitrators shall be

formed. One arbitrator shall be appointed by Us. The second arbitrator shall

be appointed by You. The third arbitrator shall be agreed by the two

appointed arbitrators. The venue shall be in Los Angeles County or at another

location if agreed by all parties. The arbitration will be governed by the

commercial arbitration rules of the American Arbitration Association. Costs

for the arbitration shall be equally split among all parties.”

5

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 5 of 12 PAGEID #: <pageID>
the latter acted as “an agent for an undisclosed principal and it made

a contract in its own name.”4 Id. 

Plaintiff’s argument is not well taken. Even if Petersen

International executed the Agreement on behalf of an undisclosed

principal, it is generally held that an undisclosed principal is a

party to, and may bring suit to enforce, contracts entered into by its

agents. See e.g., Ford v. Williams, 62 U.S. 287, 289 (1858);

Brunswick Leasing Corp. v. Wis. Cent., Ltd., 136 F.3d 521, 526 (7th

Cir. 1998); Heart of Am. Lumber Co. v. Belove, 111 F.2d 535, 537-38

(8th Cir. 1940); Thayer v. Luce, 22 Ohio St. 62, 78 (Ohio 1871);

Restatement (Third) of Agency §§ 6.03 (2006); Am. Jr. 2d, Agency §

308. Plaintiff does not argue that there are exceptional

circumstances that would abrogate this general rule and there is no

indication that the Agreement involves a non-delegable duty or

personal services or that it specifically excludes the principal’s

liability on the contract. 

Moreover, the Agreement clearly indicates that Petersen

International was acting as an agent for Underwriters. Petersen

International is identified in the Agreement as a “Lloyd’s

Correspondent.” Exhibit 1, attached to Motion to Remand, p. 1. “A

correspondent is an intermediary, that is, a person or entity ‘that

4 “A principal is undisclosed if, when an agent and a third party

interact, the third party has no notice that the agent is acting for a

principal.” Restatement (Third) of Agency § 1.04(2)(b). “A principal is

unidentified if, when an agent and a third party interact, the third party has

notice that the agent is acting for a principal but does not have notice of

the principal's identity.” Id. § 1.04(2)(c). “A principal is disclosed if,

when an agent and a third party interact, the third party has notice that the

agent is acting for a principal and has notice of the principal's identity.” 

Id. § 1.04(2)(a).

6

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 6 of 12 PAGEID #: <pageID>
performs services for another in a place or market that the other does

not have direct access to.’” Hess v. Fidelity Nat. Prop. and Cas.

Ins. Co., No. 3:06CV184/RV/EMT, 2007 WL 496475, at *1 (N.D. Fla. Feb.

12, 2007) (quoting Black's Law Dictionary 370 (8th ed. 2004)). See

also Allegrino v. Conway E & S, Inc., No. 09-1507, 2010 WL 1854125, at

*5 n.6 (W.D. Pa. May 5, 2010) (quoting Black’s Law Dictionary (8th ed.

2004) (online)). By signing the Agreement as a “Lloyd’s

Correspondent,” see Exhibit 1, attached to Motion to Remand, p. 1,

Petersen International disclosed the existence of an agency

relationship. See Hess, 2007 WL 496475 at *1; Allegrino, 2010 WL

1854125 at *5 n.6 (suggesting that a Lloyd’s “correspondent” is a

Lloyd’s agent); Rock Holdings, Inc. v. Certain Underwriters at Lloyd’s

London, No. 09-11599, 2009 WL 2475400 (E.D. Mich. Aug. 11, 2009)

(suggesting that a Lloyd’s “correspondent” is an insurance broker or

agent). The existence of an agency relationship is also disclosed on

the cover page of the Agreement, which provides that the Agreement was

“issued in accordance with the limited authorization granted to the

Correspondent by certain Underwriters at Lloyd’s, London whose names

and the proportions underwritten by them can be ascertained from the

office of said Correspondent.” Exhibit A, attached to Motion to

Dismiss, p.1. Furthermore, the Agreement provides that the

“Correspondent is not an Insurer . . . and neither is nor shall be

liable for any loss of claim.” Exhibit 1, attached to Motion to

Remand, p.2. Under the circumstances, plaintiff will not now be heard

to deny that it knew that Petersen International signed the policy as

an agent.

7

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 7 of 12 PAGEID #: <pageID>
Regardless of whether Underwriters is an undisclosed principal or

whether Petersen International can be held liable on the Agreement,

Underwriters – as the principal – is a party to the Agreement. See

Williams, 62 U.S. at 289; Thayer, 22 Ohio St. at 78; Restatement

(Third) of Agency §§ 6.01 (providing that a disclosed principal is

liable for contracts entered into on its behalf by agents acting with

actual or apparent authority), 6.02 (providing that an unidentified

principal is liable for contracts entered into on its behalf by agents

acting with actual or apparent authority), 6.03 (providing that,

unless excluded by contract, an undisclosed principal is liable for

contracts entered into on its behalf by agents acting with actual or

apparent authority) (2006). That being the case, at least one party

to the Agreement is not a United States citizen and this action

therefore falls under the Convention. This Court therefore has

jurisdiction because the action is “deemed to arise under the laws and

treaties of the United States.” 9 U.S.C. § 203. 

B. Timing

Ordinarily, a notice of removal must be filed “within 30 days

after the receipt by the defendant, through service or otherwise, of a

copy of the initial pleading setting forth the claim for relief upon

which such action . . . is based.” 28 U.S.C. § 1446(b)(1). Moreover,

removal ordinarily requires that “all defendants who have been

properly joined and served must join in or consent to the removal of

the action.” 28 U.S.C. § 1446(b)(2)(A). Plaintiff argues that

removal was improper because it did not conform with the rule of

unanimity within the time constraints of §1446. Specifically,

plaintiff asserts that removal was untimely because defendant TR’BL

8

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 8 of 12 PAGEID #: <pageID>
did not join in the Notice of Removal within 30 days of service on the

first-served defendant. Motion to Remand, pp. 3-7. 

In the present case, only defendants Petersen International and

Underwriters joined in the Notice of Removal. Notice of Removal, at

3. The Notice of Removal indicated that TR’BL consented to removal;

however, TR’BL did not file its written Consent to Removal until

August 9, 2012, i.e., more than thirty days after the case became

removable. Based on the foregoing, removal would generally be

improper based on a lack of timely unanimity. 

Defendants assert, however, that unanimous consent to the removal

was not required within thirty days after the case became removable

because the Notice of Removal bases removal on the Convention. Notice

of Removal, ¶¶ 8-11. As implemented, the Convention provides that,

where the subject matter of a state court action “relates to an

arbitration agreement or award falling under the Convention, the

defendant or the defendants may, at any time before the trial thereof,

remove such action.” 9 U.S.C. § 205 (emphasis added). Other

procedures applicable to the removal of cases apply. Id. 

The procedure for removal of civil actions is addressed in 28

U.S.C. § 1446. The Federal Courts Jurisdiction and Venue

Certification Act of 2011, Pub. L. No. 112-63-DEC. 7, 2011, 125 Stat.

758, amended section 1446 to include the following provision: “When a

civil action is removed solely under section 1441(a), all defendants

who have been properly joined and served must join in or consent to

the removal of the action.” See 28 U.S.C. § 1446(b)(2)(A)(emphasis

added). By implication, civil actions that are removed on a basis

9

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 9 of 12 PAGEID #: <pageID>
other than section 1441(a) do not require that all defendants join in

or consent to the removal of the action. In any event, removal

pursuant to the Convention is timely “at any time before trial . . .

.” 9 U.S.C. § 205. As previously indicated, this action was properly

removed under the Convention because it relates to an arbitration

agreement falling under the Convention. The action was also removed

and all defendants expressly joined in the removal before the state

court action proceeded to trial. Accordingly, this action was timely

removed under the Convention. 

In short, this action was timely removed, and the Court is vested

with federal question jurisdiction pursuant to 9 U.S.C. § 203 because

this action relates to an arbitration agreement falling under the

Convention. It is therefore RECOMMENDED that Plaintiff’s Motion to

Remand, Doc. No. 9, be DENIED.5 

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections

must be filed within fourteen (14) days after being served with a copy

thereof. Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

5

In so recommending, the Court expresses no opinion as to whether

plaintiff’s claims are barred by the terms of the Agreement, whether plaintiff

has waived any right of arbitration, or whether the statute of limitations has

expired.

10

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 10 of 12 PAGEID #: <pageID>
de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

September 27, 2012 s/ Norah McCann King 

Norah McCann King

United States Magistrate Judge

11

Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 11 of 12 PAGEID #: <pageID>
Case: 2:12-cv-00660-MHW-NMK Doc #: 20 Filed: 09/27/12 Page: 12 of 12 PAGEID #: <pageID>